What if I moved to Florida, which Bankruptcy Exemptions apply?

As a Ft. Lauderdale Bankruptcy attorney, the issue of which property is exempt from creditors and that may be retained by the debtor must be reviewed in every case.  A recent case brings to mind one intriguing issue I want to mention here.  What if a person moves to Florida from another state?  The debtor may use the Florida exemption law only if the person resided in Florida for more than 730 days.  That’s the easy part.  But if the debtor has not resided in Florida for that long of a period of time, than the debtor must use the law based on where the debtor resided the majority of time in the 6 months prior to 730 days ago.  There is a split in case law on how to interpret this issue.  The details on this issue can be reviewed by Attorneys and non-attorneys in the article I wrote for attorneys at www.solomonlawoffice.com   Here, I want to mention  the recent case of  In re Houston, 2010 Bankr Lexis 1164(Bankr S. D.  Tex.  March 11, 2010).   The court concluded that BAPCPA preempts state law on this issue, disagreeing with reported Florida bankruptcy decisions.  Essentially,  the court held that certain exemptions must be applied as if the debtor still resided in the prior state, and even  if the property is located in the new state.  This view differs from the view that if the prior state’s law says its exemption laws do not apply to non-residents,  than only federal exemptions apply. 

What does all this mean?  For most debtors,  probably nothing.  But in certain cases,  the assets that the debtor who moves between states can retain might differ depending on the interpretation.  In particular, the proper interpretation might have a greater effect on debtors who move from Florida which has an unlimited homestead protection to a new state which does not but might have a way of protecting an unlimited homestead if bankruptcy is filed within 730 days.  If you have moved to Florida, contact Ft. Lauderdale bankruptcy attorney Jeffrey Solomon to review whether you should file bankruptcy sooner or later than the 730 days.

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